JUDGMENT 1. - This appeal is directed against the judgment of Sessions Judge, Merta, dated July 20, 1978 by which he convicted the accused-appellant for offence Under Section s 376 and 354 IPC and sentenced to three years' rigorous imprisonment and a fine of Rs. 4,000/- and in default thereof to undergo six months' rigorous imprisonment on the first count and six months' rigorous imprisonment and a fine of Rs. 1,000/- and in default to further undergo one month's rigorous imprisonment. Both the substantive sentences were made to run concurrently. 2. The prosecution case started on a First Information Report lodged with Deputy Superintendent of Police, Nagore by Ganesh Ram on August 19, 1976 wherein it was alleged by him that on the previous evening after sun set when it was dark Gangaram son of Shiv Narain Jat came to his Dhani and told him that he wants Rs. 1600/- as expenses on which he stated that he has no money. He thereafter threatened him with beating on which he got rid of him by saying that be will bring it from the village and give it to him. When he had gone Gangaram called Runki, his sister, in the sitting room which is known as 'Jhunpa' and there committed rape with her. At that time he and Bhinyaram came from village side. At that time Ganga Ram was engaged in committing sexual intercourse with her. His sister was weeping on which they challenged him (Gangaram) so he left her and ran away. It was further mentioned that the police station people are in favour of Gangaram and hence he has come to Nagore after leaving Mst. Runki at hospital. This report was forwarded to the Station House Officer, police station, Surpalia with the direction that she should be medically examined. At the police station Ganeshram's statement was recorded and a case was registered for offence Under Section s 376/354 IPC. Mst. Runki was medically examined by Medical Jurist, Government Hospital, Nagore who stated that the age of the prosecutrix was about 17 years and as regards sexual intercourse he mentioned that he would only say after report of the chemical analyst. It was mentioned that she was having injury on the face which was a bite mark and left side of the chest and nowhere else thereby proving no stiff resistence. It was mentioned that she was having injury on the face which was a bite mark and left side of the chest and nowhere else thereby proving no stiff resistence. After completion of the investigation charge sheet was submitted against the accused-appellant before the Judicial Magistrate 1st class, Nagore for offence Under Section s 354 and 376 IPC who committed him to Sessions. The learned Sessions Judge framed charges and the accused denied the same and claimed trial. At trial the prosecution examined as many as eight witnesses in support of its case. The accused-appellant took up the defence that there was political enmity with Bhinyaram and the whole case has been foisted because of him. He placed on record various documentary evidence to show the enmity with the other side. These documents include the judgments of various courts, notices issued by the accused as Sarpanch, First Information Report so no and so forth. He also examined Magnaram as a defence witness. The learned trial Judge convicted and sentenced the accused appellant as indicated above. Aggrieved by his conviction and sentence the accused-appellant has preferred this appeal. 3. Mr. Singhvi, appearing on behalf of the accused-appellant, submitted that the learned Sessions Judge has fallen into an error in not assessing the evidence of the prosecutrix in true prospective. It is submitted that learned Sessions Judge has considered the various circumstances in isolation and on basis of same, though holding that the prosecutrix was not coming with a true story yet held her to be a reliable witness and based conviction on her statement. He submitted that there are inherent weaknesses in the case of the prosecution which could be proper checks and if the same would have been considered ingredients of the offence of rape are not at all satisfied in the circumstances of the case. It is submitted that the place of occurrence has been changed. In the First Information Report it was the 'Jhunpa' which was a sitting room in the house of informant Ganesh Ram, brother of the prosecutrix, while at trial it has been shown to be Dhundha which was at a distance of 100 pawandas from the Dhani where there is 'Jhunpa' 100 pawandas distance equals to 500 ft. and this Dhunda is a place which is used for tying the cattle. This change renders the prosecution story false. and this Dhunda is a place which is used for tying the cattle. This change renders the prosecution story false. It is then sumbitted that the prosecutrix has admitted in her statement that she was sleeping in the Dhani when the accused had come and when he asked her to go along with him in this Dhundha she voluntarily went there. It is further submitted that Ganesh Ram's wife and Runki's mother were in the Dhani at the time when the accused came there and asked her to accompany and in case there is least truth in commission of forcible sexual intercourse then certainly there would have been lot of hue and cry and everybody would have been witness to the occurrence. On the contrary circumstances are incompatible in as much as no mark of violence has been found on the body including no injury on her genital organs. It is further submitted that her bangles have also not been broken. It is further submitted that she was first married to Budha, then she was given Nata to another man and a case was also instituted for abduction against Budha, yet she has stated that she has no sexual intercourse with anybody including her two past husbands before the date of occurrence She stated that she was a virgin till the date, the accused committed sexual intercourse with her. This statement of her has been found to be false, according to the statement of the Doctor, who has categorically stated, she is accustomed to sexual intercourse. Thus, it is submitted that she has no sanctity for truth and intends to hide the realities. About Ganeshram it is submitted that his conduct in the case is far from satisfactory. He has stated that he did not even narrate the incide to his mother who was in the Dhani and also did not say to anybody else in the village except Bhinyaram who is arch enmey of accused Gangaram. It is further submitted that before going to the police station it is an admitted case of Ganesh Ram that he went for the legal advice to Shri Ramsingh Kudi, an Advocate and the Member of Legislative Assembly and it was thereafter that he went to the police. He in fact even does not know the place where he had given the report. He in fact even does not know the place where he had given the report. Thus, it is submitted that there is no corroboration to the statement of the prosecutrix and the accused is entitled to the benefit of doubt. 4. Mr. Mathur appearing on behalf of the State submitted that the learned Sessions Judge has discussed the evidence and law in details and the judgment of learned Sessions Judge, Merta does not warrant any interference. He submitted that the prosecutrix has categorically stated that Ganga Ram came to her and told her that he wanted to discuss some problem with her so she voluntarily accompanied him because he was quite elderly in age than her and she could not have suspected that he would commit rape on her. It is further submitted that both Ganesh Ram and Khinyaram had seen him going away with a dhoti in his hand and that supports the prosecution story. It is further argued that the report of the chemical analyst corroborates the statement of the prosecutrix. 5. I have heard learned Counsel for the parties and have perused the record. 6. PW 5 Runki has stated that one day after evening in the darkness accused came to her Dhani where she was staying with her mother, brother and brother's wife. He demanded Rs. 1600/- from her brother else stated that he will give her in Nata in village Jagleshar. His brother said that he will not send her to that village and would arrange money. Her brother thereafter went away and accused told her that she should accompany him in the Dhundha which was at a distance of about one field from her house. He told her that he wants to commit sexual intercourse with her on which she denied but the accused forcibly committed rape on her. Just then her brother Ganesh Ram and Khinyaram came and on their challenge the accused ran away. Thereafter she along with her brother and Khinyaram went to the house of Gumanaram and from there they went to Nagore. Thereafter they had gone the residence of Ram Singh Advocate, He asked her to go to hospital and sent her brother to police. In cross-examination she has stated that she never had sexual intercourse with any male before the accused did it. She stated that neither her husband Budharam did it nor the subsequent husband. Thereafter they had gone the residence of Ram Singh Advocate, He asked her to go to hospital and sent her brother to police. In cross-examination she has stated that she never had sexual intercourse with any male before the accused did it. She stated that neither her husband Budharam did it nor the subsequent husband. She stated that her present husband is Heera Ram and a litigation with Budha Ram is still going on. She stated that she did not give statement to the police that accused used to visit her place very often during night hours. She stated that on the day of occurrence she had slept in the evening outside her house and her brother's wife was inside. She admitted that when accused came and told her to go to Dhundha she had gone there with her own sweet will. She admitted that she did not tell him to talk to her in the house. She also admitted that she neither told her Bhabhi not the mother that she is going towards Dhundha with Ganga Ram. She admits that she did not sustain any injury despite the fact that she was forcibly thrown on the ground. She gave the reason that it was sand. She admitted that she was wearing glass and rubber bangles and the accused had a hold by his hands but her bangles were not broken. She then states that at the time of commission of sexual intercourse the accused had lifted her petticoat completely from the back side and himself had removed his Dhoti. She states that she cannot say whether the accused has completed intercourse with her or not. She then states that she had not dictated to the police that the accused had run away in between. She admitted that she had put on the clothes only after her brother had come there. She contradicted herself on staying at the place of Gumanaram over night and also about staying at the Place of Shri Ram Singh Advocate. She denied the suggestion that she has falsely implicated the accused. 7. PW 6 Ganesh Ram is the brother of the prosecutrix Mst. Runki who stated that Runki was 18 years of age and on the day of the occurrence Ganga Ram had come to his Dhani for demanding Rs. 1600/- which he claimed to be expenses of a. case. She denied the suggestion that she has falsely implicated the accused. 7. PW 6 Ganesh Ram is the brother of the prosecutrix Mst. Runki who stated that Runki was 18 years of age and on the day of the occurrence Ganga Ram had come to his Dhani for demanding Rs. 1600/- which he claimed to be expenses of a. case. He went to the village and after sometime he heard the cries of his sister on which he ran towards Dhundha and saw that Ganga Ram got up from Runki and ran away with lathi in his hand. Runki thereafter told him that Ganga Ram had brought her there and forcibly committed rape with her. Thereafter he along with Khinyaram and Runki came to Dhani and took a cup of tea and started for Nagore and after meeting Ram Singh Advocate the report was lodged. In cross examination he admits that the place of occurrence is about 100 pawandas(500 feet) from his residential house. He further states that at the time when Ganga Ram had come Runki was busy in grazing the cattle and according to him it is that place where the cattle are tied. According to him his mother and his wife were in Jhumpa which was in the Dhani. According to him the place where the rape was committed is used for tying the sheep and goats and on that day also lambs were there. He states that he had told the police that he had seen accused lying on Runki but why it is not written, he is unable to say. He also denies to have given statement to the police about his talks with Gumana Ram Choudhary. He states that he does not know that there is hospital in Sunpalia. He admits that there is a police chowki at a distance of 8 kms. from his village but he did not go there. He also admitted that there is dispensary but there also he did not go. He states that it is at the instance of Gumana Ram that he had gone to Ram Singh Kudi Advocate else he was not knowing him from before. He states that he does not know the houses of the police officers. It is stated that they went to the house of one Magnaram who had written the report. He admits that his sister was first married to Budharam. He states that he does not know the houses of the police officers. It is stated that they went to the house of one Magnaram who had written the report. He admits that his sister was first married to Budharam. Thereafter he filed a case against Budharam for abducting his sister which case is still pending and thereafter gave her in Nata to Heeraram. He states that he did not tell about the incident to his mother before bringing her to Nagore. He denies the knowledg of litigation between Khinyaram, Khiali Ram and Gangaram. He however, admits that Ganga Ram was at the time Sarpanch of the village and at that time Gumanaram was the Ward-panch, He denies knowledge of removal of Gumanaram as a Panch. He admits that on the date of occurrence it was a dark night. He cannot say as to she had gone with the same clothes to Nagore which she was wearing at the time of rape. Khinyaram PW 7 is another witness who has stated that Ganeshram came to him and told him to go to the place of Gumana Ram. At that time when they were going he and Ganesh Ram heard the cries from a Jhunpa and when the reached there they saw Ganga Ram committing intercourse with Runki on which he challenged him and he ran away and thereafter he went to the place of Gumanaram who advised for lodging a report at Nagore, hence they all went to Nagore at the residence of Ram Singh Kudi Advocate from where she was sent to hospital and they went to lodge the report. In cross examination he states that he was always available at the residence of Gumanram. On the date of occurrence, according to him when Ganesh Ram came, it was not dark. He states that he was not told the reason of his taking to Gumana Ram's place by Ganesh Ram. He has denied to have given certain statements to the police in respect of the site of occurrence. According to him when the came from the place where the rape was committed to the Dhani along with Runki her mother and Ganesh Ram's wife were sitting there. He denies to be a driver of Gumanaram's tractor. He admits that he had been helped by Gumanaram in the cases against him. According to him when the came from the place where the rape was committed to the Dhani along with Runki her mother and Ganesh Ram's wife were sitting there. He denies to be a driver of Gumanaram's tractor. He admits that he had been helped by Gumanaram in the cases against him. He denies that there are two parties in the village. He also denies that there was a case between his father and Gangaram. This is total evidence in the case. 8. One of the most striking feature of the case is the place of occurrence. According to the site-plan the place of occurrence is 100 pawandas (500 ft) away from the Dhani of Ganeshram and 130 pawandas (650 feet) away from Sanwta's Dhani. This is absolutely isolated place not used for human habitation. Inside this place are kept sheep and goats and were also there at the time of occurrence. According to the prosecutrix it had already become dark when the incident took place and that she had already slept prior to it and was infact awakened by the accused. Why a young girl of 18 years ought to have accompanied an accused at that hour of the night to an isolated place is difficult to understand unless she was a consenting party. She stated that she went voluntarily but did not suspect that rape can be committed on her. Obviously according to her own saying she was not knowing Gangaram accused closely from before, then how she believed him and voluntarily accompanied at that hour is un-understandable. The prosecution came with the case of commission of rape in the Dhani itself but this place of occurrence has been changed subsequently as it could not have been possible to keep the same place as the place of occurrence because her mother and brothers's wife were already there. The another important aspect is her presence in that Dhundha, which according to Ganesh Ram was for the purpose of grazing the cattle and going herself on a cell from accused Gangaram. Ganesh Ram has stated that at that time when the accused Gangaram came Mst. Rhunki was grazing the cattle in that. Dhundha, while it is not her case, therefore, it appears that her statement is more correct when she says that she had voluntarily gone in the Jhunpa. Ganesh Ram has stated that at that time when the accused Gangaram came Mst. Rhunki was grazing the cattle in that. Dhundha, while it is not her case, therefore, it appears that her statement is more correct when she says that she had voluntarily gone in the Jhunpa. Now whether she was a consenting party for commission of rape is to be seen from other circumstances. There appears to be a lot of truth in the prosecution case that sexual intercourse has been committed with Mst. Runki by accused Gangaram, but the question is whether it can be termed as a rape, i.e., against her will and consent. There are striking circumstances in the case which make the story of forcible sexual intercourse against her will and consent doubtful and they are precisely as under: 9. Firstly as indicated above the place of occurrence and the hour of the incident: A place selected away from any Dhanies at a distance of minimum 500 feet from any dwelling house gives an indication that she was knowing that a male person where she will be at nobody's protection and could be subjected to commission of rape. 10. Secondly her false statement about her virginity: She has categorically stated that prior to Gangaram's committing sexual intercourse with her she did not have it from anybody including her previous two husbands. This statement is absolutely false terming her to be not a wholly reliable witness because according to the Doctor she was accustomed to sexual intercourse. 11. Thirdly the theory of violence committed on her is negatived by the medical evidence as no marks of violence have been found on her person. Regarding commission of rape no injuries have been found on her genital organs. 12. Fourthly not breaking the glass bangles despite struggle is yet another factor which suggests her to be a consenting party and fifthly not narrating the incident of rape to Ganesh Ram's wife and mother is a strong circumstance to negative the prosecution story. It appears that her brother had been trying to encash her who had instituted a case against Budh Ram also, took the advantage of the situation of her finding in compromising position with Gangaram and the story of forcible sexual intercourse has been invented in league with Ruinyaram and Gumanaram. It appears that her brother had been trying to encash her who had instituted a case against Budh Ram also, took the advantage of the situation of her finding in compromising position with Gangaram and the story of forcible sexual intercourse has been invented in league with Ruinyaram and Gumanaram. The chances of embroidery can also not be ruled out in the case as the circumstances indicated that the prosecutrix had been taken from place to place including a lawyer before the report is lodged, then not lodging the report at Surpaliya or Dey is also unexplainable. In a case like the present one when there are several infirmities and total lack of corroborating the evidence it is not safe to base conviction on the sole testimony of the prosecutrix, particularly when she is a witness falling in the categoricary partly reliable and partly unreliable witness. Their Lordships of the Supreme Court in Vedivelu Thevar v. The State of Madras etc., AIR 1957 S.C. 614 , have held that court has to circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial which is lacking in the instant case. Suspicion however, strong may be but it cannot take place of proof. Gangaram's conduct is not far from doubtful in as much as there may be a circumstance that he might have persuaded the prosecutrix to yield to his evil desire under the pressure of money from her brother, may be that he might have taken advantage of his position as a Sarpanch or previous role he played in case against Budha but all these alternate hypothesis cannot substitute for a positive case of commission of rape on her. Though there are strong suspicions yet for paucity of proof he is entitled to the benefit of doubt. 13. As a result of the aforesaid discussion benefit of doubt is extended to the accused-appellant. The appeal is accepted and the accused-appellant, Gangaram, is acquitted of the charges levelled against him. His conviction and sentence are set aside. He is on bail and need not surrender to his bail bonds.Appeal accepted. *******